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The Canadian Jewish News, thursday, December 16, 1982 - Page 7
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Robin Coven, a second year law student a:t .the University of Ottawa, explores here the legal implications of the dispute between ■ the university's Jewish Students' Union and the Central Co-ordinating Committee of the Students' Federation, which has been covered extensively in The CJN's riews columns durinjg the past couple of months.
Prof. Joseph Magnet, professor of law at the U of O, says Ms. Coven's article "cogently describes the juridicial frame^york surrounding events of great importance to the Jewish community . . ." He adds that "apparently, other campuses'across Canada have, experienced similar problems to those faced on the Ottawa University campus and for that reason, I recommend that Ms, Coven's article be published."
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By
ROBIN COVEN
The events during the past few months at The University of Ottawa involving the dispute between the Jewish Students' Union and the Central Co-prdinating Committee have raised a number of legal issues.
This past summer the CCC passed a resolution to condemn and keep off campus any group "affiliated with racistTZionist ideology." In effect, no meetings of the JSU-Hillel could be held on caimpus, and during the month of September the JSU'was denied club status and access to facilities availiable to other clubs existing within the university.
Only after prolonged pressure by the JSU and the Jewish community of Ottawa did the university administration begrudgingly overrule the resolution of.the CCC.
The CCC, in passing such a resolution, has not only violated the constitution of the Students' Federation of the University of Ottawa^ but has also violated fundamental rights aind freedbins guaranteed to us as Ontario residents and Canadian citizens by the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. In addition the CCC has potentially violated s.281.2[l] of the Crimhial Code which deals with public Ihciteinent of hatred..
The, preamble of the bylaws of the Students' Federation of the University of Ottawa statesunder S.2 that oneofits goals is "to contribute ... to the development of social and religious sense among the students . . ." Ariother goal is stated under . section 6: "to create and preserve true friendship and close co-operation among the , students . . ."
The CCC, acting as the executive body of the Students' Federation, has clearly failed to pursue these goals. In fact, the CCC actions have singled but Jewish students on campus as; objects of deirision; they have polarized Jews and Muslims, Zionists and anti-Zipriists within the university.
The actions of the CCC have raised tensions so high that when Jim Peterson MP was speaking in the Agora about his recent trip to Lebanon, the event ended in violence when a fightbroke out between an Arab and a Jewish student. ■■/■
The dispute extends beyond the boundaries of the university community to encompass broader legal issues.
The first area where rights of students of the university have been violated is uiider the Ontario Human Rights Code. This legislation sets out areas of life in which it is prohibited to discriminate on certain grounds. Section 1 of the Code states that "every person has a right to equal treatment: with respect to . . . facilities, without discrimination because of race, ancestry, place of origin, color,_ethnic origin, citizenship and creed."
Caselaw defines discrimination as "differ- . ential treatment as a result of which the victim suffers adverse consequences or a serious affront to dignity."
Discrimination on the basis of religion was found to have occurred when recreational facilities were withheld from a Jewish couple.
The JSU did customarily have access to the facilities of the university until the resolution by the CCC was passed. The Jewish students at the University of Ottawa, as residents of the Province of Ontario, attending a university funded by the Provhice-of Ontario are entitled to have the right of access to facilities free from discrimination protected for them.
The Criminal Code addresses the problem which has been raised by the CCC resolution. Section 281.2(1) states that "everyone who, by communicating statements in any public place incites hatred against any identifiable group where such statement is likely to lead
to a breach of the peace is guilty of an indictable offence or an offence punishable on summary conviction."
This. was one- of the amendrhents to the Criminal Code which was introduced in 1965 as a result of recommendations of the special committee on hate propaganda in Canada. The committee was formed because of concern regarding the dissemination of hate literature in Canada. - -
In order to constitute an offence under this section there must be a casual: connection between the speaker's words and the enduing disturbance or probability of a disturbance. The result must be foreseeable and probable in light of the provoking statement. The truth or proveable public benefit of the stiatement Ts a complete defence.
Accusations by members of the CCC branding those who support the existence of the State of Israel as racists are destined to incite hatred among students, likely to lead to breach of the peace. The previously, mentioned violent outbreak during the speech by MP Jim Peterson is a perfect case on point.
In reaction to the actions of the CCC the JSU circulated a petition and collected more than 1,000 signatures calling for the impeachment of the student executive. The grounds for impeachment were framed under ss.2.18 {a)(l) and (5) of the Students' Federation bylaws — failure to carry out constitutional duties without just cause,, and abuse of power.
The impeachment issue will be decided by the student court, comprised of students coming from various disciplines within the university.
This procedure has. the appearance of impartiality and justice. However, if one examines how this, year's student court is appointed, it is evident that only a facade of impartiality is present.
A new student court must be appointed this year- because students who had been appointed to the court in previous years have graduated. It was decided by resolution that the selection committee to choose judges who will sit on the court will consist of three people: one member chosen by the CCC, one member chosen by the JSU, and the Grand Councilchairman.
In allowing a member of the CCC to be involved in the selection process the Grand Council had violated a basic doctrine of administrative law that no man may be a judge at his own trial.
If true justice is to be done an objective body should be responsible for appointing students to the court. One solution might be to have members of the Grand Council nominate three unbiased members to select two students to be judges on the court. These two students could then choose the remaining students who would sit on the court with them. .
Civil liberties guarantee fundamental rightsahd freedoms which have todowith the relationship between hidlviduals, groups and the state. The most serious violation of civil liberties as a result of the actions of the CCC has occurred undier sectfons 2[b] and [d] of the Canadian Charter of Rights and Freedom: freedom of thought, belief, (pinion and. expression; and freedom of association. The latter concerns the.right to Join in common cause with another or others in the pursuit of lawful bbjects.
The Charter applies specifically to the current situation since the University of Ottawa, endowed by stature with public purposes carried out with public funds, has a sufficient connection with the legislature and government of Ontario to be subject to the Charter guarantees provided by s.32(l)(b).
Section 1 of the Charter guarantees these rights "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The rights and freedoms guaranteed in the Charter are not absolute. In time of war or crisis, when the freedoms of the individual conflict with the security of the state these rights may be subordinated. The courts, however, have historically.. endeavored to protect these rights.
Archibald Cox, in his book Freedom of Expression, states eloquently that in a free and democratic society "freedom of inquiry and liberty of expression were deemed essential to the discovery and spread of truth; for only by the endless testing of debate could _ error be exposed, truth emerge, and men enjoy the opportunities for human progress;"
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The JSU stands behind long-standing ^anadian government poHcy in supporting the existence 6f the State of Israel. Because of
That, the JSU was denied a forum from which to express its views.
However, the blame does not rest with the CCC -alone. The university administration must be criticized for its apathy in responding to the dispute. It has the authority to control the activities of student groups on campus. In the University of Ottawa Act, s. 17 gives the • administration the authority to discipline students.
It Is shameful that the university administration failed to act when a pamphlet was distributed by the Muslim Students Assc»cia-tion in the Uni-Centre, referring to Jews as "vampires" who * 'lower the moral tone" of countries where they settle, and calls upon
"the expulsion of the Jews for all time." That this is criminal as defined within 3.281.2[1] of the Criminal Code Is beyond all doubt.
Letter To The Editor
rees
Ever since we met I have had the highest regard for Rabbi Arthur Bielfeld — and for his scholarship, 'deep devotion to Jewish values and for his excellent skills as a teacher. It is \yith understandable regret, therefore, that 1 must disagree with many of the points made in his article in The Canadian Jewish News.
The general objection is that Rabbi Bielfeld draws conclusions from false premises. TO be specific:
(1) In encouraging Canadian Jewish leaders to oppose certain policies of the Begin (or any IsraeH) government, he asserts: "The primary issue remains the West Bank."
This is simply not true.
The primary issue is the refusal of a score of Arab governments to recoignize and accept Israel's existence. Israel's neighbors [Egypt, a recent exception} have been bent on her destruction, and would, If they could, have achieved It.
Rabbi Bielfeld's conclusion overlooks the historical fact that for two decades prior to 1967 there was no West Bank obstacle to peace [Jordan had occupied it in 1948 in violation of the United Nations], there was no festering sore of the Palestinians having a homeland, yet the Arabs refused peace to . Israel.
"Nopeace," they unanimously declared at the Rabat conference. "No negotiation! no recognition! "The infamous three NOs of the Arab leaders. That is the primary issue, not the West Bank.
(2) Support of Israel'sstaunchest allies in the United States is eroding, Rabbi Bielfeld claims, ". ; . not because of Arab oil interests, but out of fundamental disagreement with the direction of Israel's present policies."
: Not so.
It is primarily and precisely because of Arab oil blackmail, concurrent with the very expensive but effective public relations programs which Arab petrodollars have been able to mount, that Israel's image has been tarnished in the United States and favorable attitudes eroded. This has been evident in the mass media and reflected in public and in government circles.
Latest example: Secretary of State George Shultz's consistent criticism of Israel's policies — on the West Bank settlements, Arab teachers' declaration of non-support of the PLO, Beirut blockade, etc., must be
viewed against the backdrop of his coming to the U.S. state department this summer from Bechtel Corporation. Bechtel is the largest U.S. corporation in Saudi Arabia, with contracts in the billions. And George Shultz was its chief executive officer. And Secretary of Defence Caspar Weinberger was his number two man there. And three former ClA directors were, or are, on its payroll.
The statement that support in the U.S. "is eroding, not because of Arab oil interests" strains credibility.
One need not look south of the border; here at home the lesson j^>plles, perhaps more so. When the Clark government In 1979 sought to move the. Canadian embassy to Israel's capital, Arab interests brought pressure to bear on Canadian banks and Canadian corporations doing big business with them In Saudi Arabia and Kuwait, and these companies in turn put tremendous pressure on Ottawa to withdraw the embaissy commitment;
(3) The Begin government denies the ". . . right of Jews outside of Israel to criticize the state," Rabbi Bielfeld ' asserts.■
I have never been aware of that denial, nor have I (and many others) refrained from criticism where warranted. It is how and where the criticism is leveled that counts.
The Jewish media, direct conversations with Israeli government representatives and other influential Israelis, and letters to the editors of Israeli newspapers are avenues of expression which can convey a message to the government and influence it. Letters to the editors of daily Canadian papers, I believe, are not effective at all in influencing Israel goviernmerits and often are counterproductive tothebest interestsoif the Jewish community.
This letter would-not be complete without stating that there are many positive aspects of Rabbi Bielfeld's articlie, and several points with which I am in agreement. :
Foremost among these is his keen insight that for many Jews the State of Israel has been the embodiment of their Jewish identification. It is not enough, Rabbi Bielfeld declares. Who can dispute that — and the need for more extensive and more qualitative pursuits into Jewish study, synagogue activity and Jewish institutional participation?
James M. Senor ■ . Toronto x^:'
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J-^ ETHIOPIANS IN BRAEL |
= Black children from Ethiopia leiam Hebrew through play at a special kindergarten class i
= hi a United Jewish^ppeal-supported absorption centre hi Beersheeba. The youngsters e
are amqng the IdcJty ones to begin a new life with theh- families hi Israel, after spending = = months In Ethiopian refugee camps following the destruction of thefr farms and crops by
= warfare. [ReUglpus News photo], =
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